Maintenance / Spousal Support / Alimony

Maintenance is also known as spousal support or alimony. These terms all mean the same under Kansas statute. The issue of maintenance can be the most hotly contested in a Kansas divorce. Most individuals do not like the idea of paying their ex support payments, especially if the individual receiving the payments is perceived by the payor spouse as being the "bad actor!"

What is the purpose of maintenance?

Usually, maintenance is provided to allow the "non-breadwinning" spouse to transition into his or her post-divorce life. The idea is that the payee spouse should take the period of time he or she is receiving the maintenance to build up job skills, or re-train in a field, for the purpose of bringing in income moving forward. It is to be transitional. The purpose is not to subsidize a permanent lifestyle.

Will I have to pay maintenance? (or Will I be able to receive maintenance?)

The Kansas statute gives virtually no guidance on this issue. The statute says that a Court may order maintenance in a Temporary Order or Decree of Divorce "in an amount the court finds to be just, fair and equitable under all of the circumstances." The most important consideration set forth in the case law is, however, the needs of one party and the ability of the other party to pay. There is no presumption that a party in a divorce is to receive maintenance. A need must be demonstrated. The easiest way to show this is through a Kansas Domestic Relations Affidavit (DRA). Page three (3) of the form allows a party to show the Court his or her budget. If a party is in the red, this is a good first step in showing the Court a need for maintenance.

If a party is successful in showing a need, there must be a showing that there is an ability to pay from the other party. Again, a DRA is a good place to start in this analysis.

Along with the above basic inquiry, a Court may consider the following:

a. Present income of the parties;
b. Prospective earning capacity of the parties;
c. Property owned by the parties (perhaps a review of the parties' asset an debt distribution resulting from the divorce);
d. Sacrifices by one party to assist the other in his or her education or career;
e. Length of the marriage; and/or
f. Health or medical needs.

The above list is not all-inclusive. Each case is taken on its own merits

If I am ordered to pay maintenance, how much will I pay?

In Kansas, there is a general guideline on this issue, but it is only that: a guideline. It is not in a statute, it is not a regulation, it is not a Supreme Court Order, it is not a Rule of Procedure. It is merely a starting point for the conversation. The guideline is 20% of the difference of the parties' earning capacities. If one of the parties does not work outside the house, it is this practitioner's experience that the Court will impute income to the party at minimum wage ($1,256 per month). Thus, if one party earns gross pay of $8,000 per month, and the other is imputed income of minimum wage, the monthly maintenance obligation would be: $1,348.

Some judges put more stock than others in this "guideline" figure. Regardless, the number resulting from this simple math problem will virtually always serve as the starting point for purposes of settlement discussions and/or arguments to the Court. The factors set forth above in determining whether maintenance should be awarded at all, can be argued for purposes of reducing or increasing the amount of maintenance once this base amount is determined.

Many times, the numbers to put into the formula (i.e., the parties earning capacities) are an issue that is argued to the Court. Many times, a party believes that the other party is "intentionally underemployed" or "intentionally unemployed" for the purpose of requesting a greater maintenance payment. Kansas Courts are allowed to impute income to one or both parties if it becomes convinced that this situation exists.

If I am ordered to pay maintenance, how long will I have to pay?

Maintenance could be one simple lump sum payment. Usually, however, it is a series of monthly payments. Again, a guideline is in play; and again, the answer is not found in a statute, in a regulation, in a Supreme Court Order or a Rule of Procedure. The "guideline," "starting point," "rule of thumb" is: one-third of the length of the parties' marriage. The "end date" is normally the date of separation or the date the Petition for Divorce is filed, not the date the Decree of Divorce is entered. Some Courts may be open to using a "start date" prior to the date of the marriage if the parties lived together as a financially-unified household beforehand.

There are several factors which are regularly ordered in Kansas that will cause maintenance to cease. If the payee spouse remarries or "cohabitates" with another in a "marriage-like" relationship, maintenance will usually cease. If either of the parties dies, this usually will cause maintenance to cease. It is not unusual to settle a divorce action with a caveat that the payor spouse does not need to pay maintenance if he or she loses his or her job through no fault of his or her own.